Johnson v. Office of Professional Conduct , 775 Utah Adv. Rep. 15 ( 2014 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2014 UT 57
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
STACEY AUSTIN JOHNSON ,
Petitioner Pro Se,
v.
OFFICE OF PROFESSIONAL CONDUCT , UTAH STATE BAR,
Respondent.
No. 20120538
Filed December 12, 2014
Original Proceeding in this Court
Attorneys:
Stacey A. Johnson, Salt Lake City, petitioner pro se
Billy L. Walker, Adam C. Bevis, Salt Lake City, for respondent
JUSTICE PARRISH authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,
JUSTICE DURHAM , and JUSTICE LEE joined.
.
JUSTICE PARRISH , opinion of the Court:
INTRODUCTION
¶1 This case comes before us on appeal from a final order of
the Ethics and Discipline Committee of the Utah Supreme Court
(Committee). The Committee determined that appellant S. Austin
Johnson violated rules 1.2, 1.4(a), and 8.4(a) of the Utah Rules of
Professional Conduct. On appeal, Mr. Johnson argues that the
Committee’s findings were not supported by substantial evidence.
We reverse the Committee’s determination that Mr. Johnson
violated the Utah Rules of Professional Conduct. And we refer to
our rules committee the question of the proper procedure to be
followed when a screening panel raises new charges against an
attorney following the screening panel hearing.
BACKGROUND
¶2 Since 2008, Mr. Johnson has represented Neri Alejandro
Lopez in various criminal and immigration matters. Mr. Johnson
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Opinion of the Court
was hired by Mirta Parker, Mr. Lopez’s mother, to represent Mr.
Lopez in obtaining permanent resident status in the United States.
To that end, Mr. Johnson prepared and filed an Application to
Register Permanent Residence or Adjust Status (Form I-485).
Thereafter, Mr. Lopez was interviewed by an officer of the United
States Citizenship and Immigration Services (USCIS). During that
interview, Mr. Lopez admitted to having pled guilty to possession
of drug paraphernalia in 2009.
¶3 Under section 212 of the Immigration and Nationality Act,
an “alien convicted of . . . acts which constitute the essential elements
of . . . a violation of . . . any law or regulation of a State . . . relating
to a controlled substance . . . is inadmissible.” 8 U.S.C.
§ 1182(a)(2)(A)(i). Because Mr. Lopez had pled guilty to possession
of drug paraphernalia, he was ineligible for permanent resident
status under section 212. However, section 212(h) of the
Immigration and Nationality Act permits waiver of previous
convictions in the case of applicants who are married to a United
States citizen and whose “denial of admission would result in
extreme hardship to the United States citizen.” Id. § 1182(h)(1)(B).
¶4 Mr. Lopez’s wife, Christy Lopez, is a United States citizen.
When Mr. Lopez’s Form I-485 application was denied because of his
prior conviction, Mr. Johnson prepared and submitted an
Application for Waiver of Grounds of Inadmissibility (Form I-601).
In support of Mr. Lopez’s Form I-601 application, Mr. Johnson
submitted a declaration from Ms. Lopez and documents detailing
some of her medical expenses from 2004 and 2007. The declaration
was not notarized. In her declaration, Ms. Lopez stated that Mr.
Lopez was the only source of financial support for her and the
couple’s three children.1 Ms. Lopez also stated that one of the
children had health issues, but provided no supporting
documentation. USCIS ultimately denied Mr. Lopez’s Form I-601
application because it found that he had “failed to provide sufficient
evidence that [his] removal would result in extreme hardship to [his]
U.S. citizen spouse and children.”
¶5 After his Form I-601 application was denied, Mr. Lopez
retained another attorney, Gloria Cardenas, to represent him in
appealing the denial. Thereafter, Mr. Lopez, Ms. Lopez, and Ms.
1
Two of the children were from Mr. Lopez’s previous marriage.
But Ms. Lopez stated that she was the children’s guardian and
considered them her own.
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Opinion of the Court
Lopez’s father, Craig Franco, attended a meeting in which Mr. Lopez
terminated Mr. Johnson as his counsel.2 As a result of the Form I-601
denial, Mr. Lopez was incarcerated in the Salt Lake County Jail
pending deportation. Though Mr. Lopez had previously terminated
Mr. Johnson as his counsel, Mr. Lopez’s mother met separately with
Mr. Johnson and rehired him to obtain Mr. Lopez’s release from jail.
¶6 Mr. Johnson visited Mr. Lopez in jail to discuss what
needed to be done to obtain Mr. Lopez’s release. Mr. Johnson filed
a petition for review with the Tenth Circuit Court of Appeals,
seeking Mr. Lopez’s immediate release from jail pending resolution
of the Form I-601 appeal. Mr. Johnson was successful in obtaining
a temporary stay, leading to Mr. Lopez’s release. Subsequently, Ms.
Cardenas was successful in appealing the Form I-601 denial, and Mr.
Lopez received permanent resident status.
¶7 Mr. Franco submitted a complaint to the Office of
Professional Conduct (OPC), alleging that Mr. Johnson engaged in
professional misconduct in his representation of Mr. Lopez. The
OPC investigated and determined that Mr. Johnson may have
violated a number of the rules of professional conduct. The OPC
sent a notice of informal complaint (NOIC) to Mr. Johnson notifying
him of the rules that the OPC believed may have been violated.
¶8 First, the OPC indicated that Mr. Johnson may have
violated rule 1.1. Rule 1.1 (competence) requires that a lawyer
provide competent representation, including legal knowledge, skill,
thoroughness, and preparation. The OPC indicated that Mr.
Johnson may have violated this rule if he failed to provide the
required documentation to support Mr. Lopez’s Form I-601
application. Second, the OPC indicated that Mr. Johnson may have
violated rule 1.4(a). Rule 1.4(a) (communication) enumerates
circumstances when a lawyer must communicate with the client.
The OPC indicated that Mr. Johnson may have violated this rule if
he failed to adequately communicate with Mr. Lopez regarding the
status of Mr. Lopez’s Form I-485 application or the need for more
information in the Form I-601 application. Third, the OPC indicated
that Mr. Johnson may have violated rule 1.16(d). Rule 1.16(d)
(termination) requires that upon termination, a lawyer must return
the client’s property, and specifically the client’s file, if requested.
2
The record is unclear whether Mr. Lopez or Mr. Franco actually
terminated Mr. Johnson. At a minimum, Mr. Lopez assented to Mr.
Johnson’s termination.
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Mr. Johnson may have violated this rule if he refused to provide Mr.
Lopez with a copy of his client file following Mr. Johnson’s
termination.3 Finally, the OPC indicated that Mr. Johnson may have
violated rule 8.4(a) (misconduct), which specifies that it is
professional misconduct to violate any of the Utah Rules of
Professional Conduct.4
¶9 A screening panel of the Committee held a hearing on the
possible violations on March 8, 2012. Based on information that
emerged during the hearing, the OPC suggested that the screening
panel also consider whether Mr. Johnson violated rule 1.2
(representation), which requires lawyers to adequately explain to
their clients the scope of their representation. Ultimately, the
screening panel found that Mr. Johnson violated rules 1.2
(representation), 1.4(a) (communication), and 8.4(a) (misconduct) of
the Utah Rules of Professional Conduct and recommended that he
receive a public reprimand. The screening panel found no basis to
conclude that Mr. Johnson had violated rule 1.1 (competence) or rule
1.16(d) (termination).
¶10 The screening panel found that Mr. Johnson violated rule
1.2 (representation) by failing “to adequately explain to [Mr.] Lopez
the scope of representation regarding Mr. Lopez’s appeal” following
Mr. Johnson’s initial termination on September 16, 2011. The
screening panel stated that “Mr. Lopez seemed confused regarding
what work Mr. Johnson was going to continue to perform”
following Mr. Johnson’s rehiring by Mr. Lopez’s mother. The
screening panel also found that Mr. Johnson violated rule 1.4(a)
(communication) by failing “to adequately communicate with [Mr.
Lopez] regarding the status of his immigration application [and] the
need for additional information” to complete the Form I-601
3
Mr. Franco alleged in his initial complaint that Mr. Johnson
refused to provide Mr. Lopez with a copy of his client file. But Mr.
Lopez testified that he received his client file within two days of
requesting it. Because the screening panel did not find that Mr.
Johnson withheld Mr. Lopez’s client file, this issue is not before us
on appeal.
4
A violation of rule 8.4(a) based solely on an attorney’s violation
of another rule will not be considered a separate violation. UTAH R.
PROF’L CONDUCT 8.4 cmt. 1a. Rule 8.4(a) is more properly thought
of as a bridge to the Standards for Imposing Lawyer Sanctions and
allowing imposition of the appropriate discipline pursuant to rule
14-605 of the Supreme Court Rules of Professional Practice. Id.
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Opinion of the Court
application. The screening panel further found that Mr. Johnson
violated rule 8.4(a) (misconduct) by violating rules 1.2
(representation) and 1.4(a) (communication).
¶11 The screening panel determined that Mr. Johnson was
negligent when he violated the specified rules but that his behavior
caused “no injury or harm to the client.” Nevertheless, the screening
panel recommended that Mr. Johnson receive a public reprimand
because of his “repeated misconduct and lack of communication,
thoroughness and diligence in his representation of clients
demonstrated by his repeated offenses.” Finally, the screening panel
expressly found that Mr. Johnson’s prior record of discipline
constituted an aggravating factor.
¶12 Mr. Johnson filed an exception to the screening panel’s
findings in accordance with rule 14-510 of the Supreme Court Rules
of Professional Practice (Rules). In his exception filing, Mr. Johnson
introduced, for the first time, documents detailing the scope of his
representation of Mr. Lopez. These documents included a signed
retainer agreement between Mr. Lopez and Mr. Johnson; a signed
letter from Mr. Lopez to Ms. Cardenas, which limited Ms.
Cardenas’s representation solely to the Form I-601 appeal; and
copies of handwritten notes from a meeting between Mr. Johnson
and Mr. Lopez, wherein they discussed the representation.
¶13 The Chair of the Ethics and Discipline Committee of the
Utah Supreme Court (Chair) is responsible for ruling on any
exception to the screening panel’s determinations. After reviewing
Mr. Johnson’s case, the Chair issued a ruling on the exception on
May 21, 2012. The Chair affirmed the screening panel’s findings,
concluding that Mr. Johnson failed to carry his burden of showing
that the screening panel’s findings were not supported by
substantial evidence, or were arbitrary or capricious, legally
insufficient, or otherwise clearly erroneous. See SUP . CT . R. PROF’L
PRACTICE 14-510(d)(3). Mr. Johnson appeals from the Chair’s ruling.
We have jurisdiction pursuant to section 78A-3-102(3)(c) of the Utah
Code.
STANDARD OF REVIEW
¶14 A party seeking review of the Committee’s decision bears
the burden of establishing that the Committee’s action was (1) based
on a factual determination not supported by substantial evidence,
(2) an abuse of discretion, (3) arbitrary or capricious, or (4) contrary
to the Rules. SUP. CT . R. PROF’L PRACTICE 14-510(f)(5). We presume
that the Committee’s findings of fact are correct, unless we
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determine that such findings are arbitrary, capricious, or in plain
error. In re Discipline of Babilis, 951 P.2d 207, 213 (Utah 1997).
Nevertheless, in light of our constitutional mandate and “the unique
nature of disciplinary actions and our knowledge of the nature of the
practice of law,” “we reserve the right to draw inferences from basic
facts which may differ from the inferences drawn by the
[Committee].” In re Knowlton, 800 P.2d 806, 808 (Utah 1990). As
such, our “review of attorney discipline proceedings is
fundamentally different from judicial review of administrative
proceedings or of other district court cases.” Id. “We need not,
therefore, defer to the [Committee] in deciding what may constitute
appropriate discipline.” Id.
ANALYSIS
¶15 On appeal, Mr. Johnson asks that we reverse the
Committee’s finding that he violated rules 1.2 (representation), 1.4(a)
(communication), and 8.4(a) (misconduct) of the Utah Rules of
Professional Conduct. Specifically, Mr. Johnson argues that the
Committee’s findings were not supported by substantial evidence.5
Upon reviewing the entire record, we agree with Mr. Johnson and
therefore reverse. We also refer the question of the procedure to be
followed when an attorney is confronted with charges at a screening
panel hearing of which he or she had no prior notice to our rules
committee.
I. THE COMMITTEE’S FINDING THAT MR. JOHNSON
VIOLATED RULE 1.4(a) (COMMUNICATION) IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE
¶16 The screening panel concluded that Mr. Johnson violated
rule 1.4(a) (communication) by “failing to adequately communicate
with [Mr. Lopez] regarding the status of his immigration application
or the need for additional information.” The Chair concluded that
the screening panel’s finding was supported by substantial evidence
because it found that the record contained evidence that Mr. Johnson
“failed to supply various necessary information” in Mr. Lopez’s
immigration application.
5
Mr. Johnson also argues that the Committee’s findings were an
abuse of discretion, arbitrary and capricious, and contrary to our
rules of professional practice. Because we agree that the
Committee’s findings were not supported by substantial evidence,
we need not address Mr. Johnson’s other arguments.
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Opinion of the Court
¶17 At the screening panel hearing, Mr. Lopez testified that
there were times that Mr. Johnson did not promptly return phone
calls, but he could not recall how many calls were not returned.6 Mr.
Lopez also testified that Mr. Johnson failed to deliver his client file
in a timely manner. But the screening panel did not make any
findings of fact as to whether Mr. Johnson did or did not return
phone calls or whether he promptly returned Mr. Lopez’s client file.
Rather, the screening panel’s only factual determination supporting
its finding that Mr. Johnson had violated rule 1.4 (communication)
was that “Mr. Johnson failed to adequately communicate with his
client regarding the status of his immigration application or the need
for additional information.” Similarly, the Chair’s determination
that Mr. Johnson had violated rule 1.4(a) (communication) was
based solely on the fact that Mr. Johnson had failed to properly
communicate with his client “so as to obtain the information and
documents that are necessary properly to process the client’s request
for relief from an agency.” And in its briefing in this court, the OPC
similarly focused on Mr. Johnson’s alleged failure to communicate
with Mr. Lopez “to make sure that [Mr.] Johnson had all the
information and supporting documents that would have given the
[I-601 waiver] application a chance at success.” Though a failure to
adequately investigate a client’s claim and to collect the
documentation necessary to support that claim are serious matters,
rule 1.4 (communication) is not the appropriate vehicle for
addressing such behavior.
¶18 Rule 1.4 of the Utah Rules of Professional Conduct states:
(a) A lawyer shall:
(a)(1) promptly inform the client of any decision or
circumstance with respect to which the client’s
informed consent . . . is required by these Rules;
(a)(2) reasonably consult with the client about the
means by which the client’s objectives are to be
accomplished;
6
Ms. Lopez also testified at the screening panel hearing that Mr.
Johnson did not return her phone calls. However, she was not Mr.
Johnson’s client. For the purposes of rule 1.4 (communication), we
are only concerned with an attorney’s communications with a client.
Any communication breakdown between Ms. Lopez and Mr.
Johnson, while regrettable, is irrelevant to whether Mr. Johnson
violated rule 1.4 (communication).
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Opinion of the Court
(a)(3) keep the client reasonably informed about the
status of the matter;
(a)(4) promptly comply with reasonable requests for
information; and
(a)(5) consult with the client about any relevant
limitation on the lawyer’s conduct when the lawyer
knows that the client expects assistance not permitted
by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make
informed decisions regarding the representation.
Thus, the rule’s focus is on ensuring that clients are adequately
informed about the status of their case and are included in the
decision-making process. Both the language of the rule and our
caselaw focus on the flow of information from the attorney to the
client. See Utah State Bar v. Jardine (In re Discipline of Jardine), 2012 UT
67, ¶ 60, 289 P.3d 516. There is nothing in the language of the rule
to suggest that it is violated when an attorney fails to investigate a
client’s claim, even if that failed investigation was due to some
failure of communication between the lawyer and the client.
¶19 The appropriate rule under which to reprimand an attorney
for failure to adequately investigate a client’s claim is rule 1.1
(competence), which requires an attorney to employ the “legal
knowledge, skill, thoroughness and preparation reasonably necessary
for the representation.” UTAH R. PROF’L CONDUCT 1.1 (emphases
added). But in this case, the screening panel was expressly asked to
consider whether Mr. Johnson violated rule 1.1 (competence) and
declined to find that he did so. Rule 1.4 (communication) cannot be
used to punish conduct covered by rule 1.1 (competence), especially
when the screening panel did not find a violation of rule 1.1. We
conclude the Committee’s determination that Mr. Johnson violated
rule 1.4 (communication) is not supported by substantial evidence.
We therefore vacate the Committee’s ruling and accompanying
sanction.
II. THE COMMITTEE’S FINDING THAT MR. JOHNSON
VIOLATED RULE 1.2 (REPRESENTATION) WAS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE
¶20 The Committee found that Mr. Johnson violated rule 1.2
(representation) of the Utah Rules of Professional Conduct by failing
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to adequately explain the scope and objectives of his representation
to Mr. Lopez. In relevant part, rule 1.2 states:
(a) . . . [A] lawyer shall abide by a client’s decisions
concerning the objectives of representation and, as
required by Rule 1.4, shall consult with the client as to
the means by which they are to be pursued. . . .
....
(c) A lawyer may limit the scope of representation if
the limitation is reasonable under the circumstances
and the client gives informed consent.
The screening panel found that Mr. Johnson failed to properly
explain the scope of his representation to Mr. Lopez after Mr.
Johnson was rehired. The screening panel stated, “Mr. Lopez
seemed confused regarding what work Mr. Johnson was going to
continue to perform.” The screening panel relied on documentary
evidence and testimony from Mr. Lopez, Ms. Lopez, Mr. Franco, and
Mr. Johnson in reaching its conclusion.
¶21 But the original NOIC sent by the OPC did not indicate that
it believed Mr. Johnson had violated rule 1.2 (representation).
Instead, the NOIC only mentioned rules 1.1 (competence), 1.4
(communication), and 1.16 (termination). Based on evidence that
emerged during the screening panel hearing, the OPC suggested
that the screening panel also consider whether Mr. Johnson may
have violated rule 1.2 (representation). Thus, Mr. Johnson did not
have advance notice that the screening panel would be considering
a rule 1.2 (representation) violation.
¶22 At the exception stage, Mr. Johnson submitted new
documentary evidence demonstrating that Mr. Lopez was fully
informed as to the scope of representation. First, Mr. Johnson
submitted a client retainer agreement. In this agreement, Mr. Lopez
retained Mr. Johnson “for representation with regard to . . . 10th Cir.
Petition for Review of Order of Deportation and Temporary Stay of
Removal.” Second, Mr. Johnson submitted a letter from Mr. Lopez
to Ms. Cardenas.7 The letter stated:
Dear Gloria:
I am writing to inform you that I am limiting you as
7
Portions of the letter were typewritten. Other parts were
handwritten, and it was signed by Mr. Lopez.
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Opinion of the Court
my attorney of representation on my immigration
matter. Mr. S. Austin Johnson will from now on
handle my immigration case. Thank you for your
service. I expect you to continue to represent me in
my appeal of the denial of the [Form] I-601 to the
AAO. But Mr. Johnson will represent me in all other
immigration matters.
Mr. Johnson also submitted copies of his hand-written notes taken
when he visited Mr. Lopez in jail and discussed what was needed to
get Mr. Lopez released.
¶23 Because Mr. Johnson did not request a hearing at the
exception stage, the Chair reviewed the screening panel’s findings
only in light of the evidence before the screening panel. While the
Chair acknowledged the new evidence presented by Mr. Johnson at
the exception stage, he did not consider that evidence in reaching his
conclusion. Instead, the Chair simply considered whether the
screening panel had sufficient evidence to make its findings at the
time it made them. The Chair concluded that the screening panel
did have sufficient evidence before it and therefore affirmed the
screening panel’s findings that Mr. Johnson violated rule 1.2
(representation). But the new documentary evidence submitted by
Mr. Johnson demonstrates that Mr. Lopez was fully informed as to
the scope of the representation. Had that evidence been before the
screening panel—or had the Chair considered it—it is difficult to
believe that they would have found a violation of rule 1.2
(representation).
¶24 The difficulty in this case stems from the preliminary nature
of the NOIC and the investigatory nature of the screening panel
hearing, combined with the procedures for appeal outlined in rule
14-510. Screening panel findings can be appealed to the Chair; this
appeal is known as an exception. Rule 14-510(d)(2) allows a
respondent to augment the record before the screening panel if he or
she requests a hearing at the exception stage. However, rule 14-
510(d)(1) provides, “If no hearing is requested, the committee chair
will review the record compiled before the screening panel.” Read
together, subsections (d)(1) and (d)(2) imply that a respondent may
supplement the screening panel record only if he first requests a
hearing at the exception stage. And if the respondent does not
request a hearing, the Chair appears to have no discretion to
consider newly submitted evidence.
¶25 This procedure is troubling in cases like Mr. Johnson’s,
where the screening panel considers possible rule violations of
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which the attorney had no notice. In such cases, the screening panel
may make factual findings adverse to an attorney without the
attorney having been given the opportunity to prepare and gather
relevant evidence. In short, the preliminary nature of the NOIC and
the screening panel’s dual role as both investigator and fact finder
raise both due process and efficiency concerns.
¶26 Attorneys are entitled to due process in disciplinary
proceedings, including “adequate notice of the charges and an
opportunity to be heard in a meaningful way.” Long v. Ethics &
Discipline Comm. of the Utah Supreme Court, 2011 UT 32, ¶ 29, 256 P.3d
206 (internal quotation marks omitted). “[T]he procedures listed in
the [Rules] are sufficient to afford due process,” id., because the
Rules allow an attorney to present new evidence at an exception
hearing or on appeal to this court. SUP. CT . R. PROF’L PRACTICE 14-
510(d)(2), (f)(5)(A). Nonetheless, procedural fairness dictates that an
attorney charged with misconduct have an opportunity to rebut
charges at the screening panel stage before the heightened standard
of review upon appeal is imposed. We are troubled by the fact that
in cases like this, an attorney does not have the opportunity to
present evidence in his favor until after the screening panel has
already made its determination. And although the attorney may file
an exception or appeal to this court, he or she is then laboring under
the burden of showing that the “determination or recommendation
of the screening panel is unsupported by substantial evidence or is
arbitrary, capricious, legally insufficient, or otherwise clearly
erroneous.” Id. 14-510(d)(3).
¶27 The possibility of new charges arising during a screening
panel hearing raises doubts as to the structure of the appeal
procedures within our Rules. Requiring an accused lawyer to either
request a hearing at the exception stage or pursue an appeal to this
court in order to present evidence responsive to charges raised
during a screening panel hearing is wholly inefficient. See Long, 2011
UT 32, ¶ 36 (recognizing that the informal screening panel system
was “designed to promote speed and efficiency in low-level attorney
discipline cases”).
¶28 Mr. Johnson’s case demonstrates this problem precisely.
Mr. Johnson received a NOIC informing him that the OPC thought
he might have violated rules 1.1 (competence), 1.4 (communication),
and 1.16(d) (termination). There was no mention of rule 1.2
(representation) as a possible violation until during the screening
panel hearing. As a result, Mr. Johnson was unprepared during the
hearing to defend himself against the charge that he failed to explain
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the scope of his representation to Mr. Lopez. And Mr. Johnson’s
lack of preparation was completely predictable, given his lack of
notice that the screening panel had any concerns related to his
compliance with rule 1.2 (representation). Mr. Johnson then
submitted responsive evidence at the exception stage, but the Chair
was unable to consider it. Thus, Mr. Johnson was required to appeal
to this court in order to obtain the opportunity to have us consider
evidence for the first time that should have been considered by the
screening panel before it found that Mr. Johnson had committed
professional misconduct.
¶29 After reviewing the entire record, we conclude that Mr.
Johnson fully informed Mr. Lopez as to the scope of his
representation. Accordingly, we hold that the Committee’s finding
that Mr. Johnson violated rule 1.2 (representation) was not
supported by substantial evidence. And because of our concerns
about procedural fairness and efficiency, we refer the issue of how
to handle new charges arising out of screening panel hearing to our
rules committee and instruct it to propose changes to the Rules to
address these concerns.
CONCLUSION
¶30 The Committee’s findings that Mr. Johnson violated rules
1.2 (representation), 1.4(a) (communication), and 8.4(a) (misconduct)
were not supported by substantial evidence. Rule 1.4(a)
(communication) cannot be used to reprimand an attorney for
behavior properly covered by other rules. And Mr. Johnson’s
evidence demonstrates that he did not violate rule 1.2
(representation) because he explained the scope of representation to
his client. Finally, Mr. Johnson did not violate rule 8.4 (misconduct)
because that violation was based solely on his violation of the other
two rules. We therefore reverse the Committee’s determination that
Mr. Johnson violated the Utah Rules of Professional Conduct.
12